45 F. 267 -

45 F1d 267

Case Text

PIERCE

THE J. R.

1;';

MOORE.

PIERCE 11.

THE J. R. P.

MOORE.

(Df,strictOowrt,E.D. North Oarolina.

1.

COLLISION-VESSEL AT FAULT-DIVISION Oll'DAMAGES.

In. of a collision between vessels, one of which has been guilty of a clear fault, there must also be clear evidence of contributing fault on the part of the other, to divide damages. A schooner collided with a yacht, which was at anchor in the channel of a river. There was no one on the deck of the yacht. The mate whose watch it was was in the mess-room. and probably asleep. A light had been burning during the night. The mate testified that he saw it an hour before the collision, that it was shining on his feet, so that he could not have missed; and that he had been absent from the deck only 10 minutes. On the schooner the master was on deok, the mate on the lookout, and a man at the wheel. and they all testified that there was no light on the yacht. A witness who lived near the river had seen the yacht at anchor the day before, and noticed her ligM during the night. Two hours before the collision M. had looked for the and it was gone. Held, that it was clear that the yach' had kept neither anchor light nor anchor watch as required by statute. .
It was a very dark night, and the yacht was at anchor in the channel 25 lI\iles from any. ireq.uented port.. An expert te.stified that· the lookout on the schooner
'.

.

9.

.

SAME-VESSEL AT ANCHOR-LIGHTS.

8.

SAME-DIVISION Oll' DAJ(A.GES.

oUl/:ht to have a6en the yacht at a distatlC6 of 200 or .800 yards, and that, if he' had seen her at 800. yards, the schooner ought to have cleared the yacht. The schooner was sailing at the rate of 6 knots, and would have covered 800 yards in some SIlOond.s more that\ a minute. Held. that the evidence of fault on the part of the, schooner was not clear enouj{h to, justify a division of dalI\ages.

In Admiralty.

Clark, for the M. D. W.· Stevenson and L. I. Moore, for the' Moore.
SEYMOUR,J. This is a case of cross-libels for a collision which took place at a. few minutes before 6 in the morning of the 13th of last De:. cember, near the mouth of the Neuse river. The steam-yacht Nydia, of which Dr. R. V.Pierce is owner, was lying at anchor near Garbacon shoal, in the channel of the river. It was not a fault that she lay there, for the river is wide and deep at this place, and there was abundant room to pass on either side of her; but being ina passage-way she was require(l .by statute to keep both anchor light and anchor watch. Case n8 (Lgllinat Yacht. She kept neither. As for the light, the yacht ha'd been burning a bright light during the early part of the night, visi:' ble at.a distance ofseveralmilel'l,":-certainly of two miles,-but thisljght was in a lantern attached to a mast which was carried away in the collis-:' ion. There was no one at the moment of the accident on the steamer's deck. The 'cook was up, in his galley malting preparations for breakfast. The mate, whose watch'it was, was. in the mess.;room·, and probably asleep.' He says he had but'lOmihutes. Whether awake or asleep,he certainly wall nob.this post. A ina:riller testifies to' having seen the light burning 'during hiswatch,whioh was from 7 tolil at night. . Thesays he looked at the 'light, and saw it, about .an' hour before the collisi.oo:; an(l tha:tit Was shiniri'g on his 'feet all the so' that he could hot have missed it.' On 'the deck of the schooner were three men,-the master-on thequarterldeck, the mate on tbe lookout,

i68

J'lCDERAL REPORTER,

vol. 45.

and a man at the wheel. Five minutes before they had been on the search for the buoy on Garbacon shoal, and must all have seen the Nydia's lights, had there been one. They all swear that the Nydia displayed no light. Theirstatement is corroborated by the fact that immediately upon the collision's occurrence the master of the schooner assigned the absence of such light as its cause; and, further, by the evidence of an unimpeached and impartial witness, Capt. R. P. Midyette, whose house is on the bank of the Neuse about two miles from where the Nydia lay, and who swears that he had observed her at anchor the day before; that at about 8 or 9 o'clock that night he had seen a brilliant light in her direction; that he was up between 4 and 5 the next morning, and looked towards the place where she lay at anchor, and saw no light there, from which he had inferred that she had gone away during the night. In this state of the evidence there can be no reasonable doubt but that the yacht had no anchor light, as well as no watch, at the time of the collision. The Nydia then is responsible in damages. Oase as against the Schooner. It is claimed that her lookou t was negligent" and that therefore the loss must be divided. The schooner had left her anchorage three hours before. The captain, as has been stated, was au the quarter-deck, a hand lit the wheel, and the mate on the lookout. On the other hand, the yacht was plainly at fault. All hands had turned in, including even the mate,' whose watch it was, and whose duty required him to be on deck. It was an exceptionally dark night, the time more than an hour before sunrise, and before the first glimmering of dawn. The yacht, with its owner and his family, lay in the channel of a river, 25 miles from a frequented port, without watch and without light. The one boat up to the moment of the collision was fully doing its duty; the other plainly and hazardously negligent. Under these circumstances, the rule is that where one vessel has been guilty of a clear fault, there should also be ,clear evidence of a contributing fault on the part of the other vessel in order to divide damages. It should not he enough that the evidence makes the care and skill and good management of the other vessel doubtful. The Comet, 9 Blatchf. 329; The Olarion, 27 Fed. Rep. 128. The fault with which the schooner is charged is, not that she did not keep a lookout, but that the lookout o.ught to have seen the Nydia an instant or so sooner than he did. The master of the schooner says his did not signal the steamer until within 60 feet of her. Lieut. Winslow I anexpert witness introduced and relied on by bothsides,says that on a night such as the one described&. dark night, with the sky overcast-the lookout ought to have seen the Nydia at a distance of 200 or 300 yards, and that if he had seen her at 300 yards, the schooner ought to have cleared the yacht. It will that this evidenceleaves the possibility of avoiding the collision be by any care on the schooner's part doubtful. Nor is this doubt remov:edby the further statement of the witness that if the schooner done so in, 200, steered weU, and was quick working, she could yards. There is po evidence upon the capabilities of the Moore in', these regards. Capt. Roberts estimates the distance at which the look·

PIERCE"'.

J. :R. P. MOORE.

269

out could have seen the Nydia at 150 yards. The Moore was sailing at a rate of 6 knots. She would have passed over the utmost distance at which, according to any testimony, her lookout could have seen the yacht, in some seconds more than a minute. It is uncertain at what precise distance the lookout actually sighted her, for I place no reliance upon Capt. Gaskin's estimate of 60 feet, founded,as it must have been, on his judgment of time, and not on sight. It is, however, certain that immediately upon seeing the Nydia the mate gave the only proper order, to plit the wheel hard down, so as to bring the schooner up to the wind. Some instants would elapse between the first uncertain appearance ofthe yacht inthe darkness of the water in front of him .before the lookout could determine its exact location. A little time was required for givinr and obeying his order. I would be unwilling to measure the seconds against the lookout of the schooner awake at his post, and exercising the judgment of a conlpetent mariner in giving his orders in a case of emergency,in favor ofaboat in a position in which the Nydia ap'pears in this controversy. The lookout had no reason to expect to meet a boat at anchor in the channel of a river without a light. A light he would instantly have seen and avoided. .In the case of The Erastu8 Corning, 25 Fed. Rep. 572, in which a steamer ran into a schooner at anchor without a light in the harbor of New Haven,ithe court says: "The officers and lookout of the steam6r were watching carefully for lights, and saw none." A boat without alight on a dark night, and not in motion, is so difficult to see that it would seem unjust to hold a lookout responsible for not· seeing it at the earliest second-I do not say minute-at which theoretically it may be visible. But were I so to hold, I would still be unable on this testimony to find the clear evidence that any vigilance and skill on the part of the schooner could have prevented the collision after the Nydia first became visible from her. decks which would be enough, in view of the clear faults· of the Nydia, to induce a court of admiralty to divide the damages. I therefore hold the schooner without fault. There is no evidence on which I can find that the J. R. P. Moore is entitled to damages by the way of demurrage. The actual loss I find to be $100. The libel of the owner of the Nydia is dismissed,with costs. The owners of the J.R. P. Moore are entitled to $100, and Let there be judgment in accordance 'herewith.

)-.

,

JlEDERAL

vol. 45.!

HUMPHREYS V. CHARLES

,"

W ARNEtt

CO.

;

Oawrt, D.

Ot)LLxsroN-ANcHOR WATCH-NEGLIGENCE:

Januiu-y:lll, 1891.)

,A heavily laden sonooner, while being towed to a wharf in a river at ebb-tide, ran aground in a position where, unles!! secured by a stern-line to the wharf be, loW, she would swing, on floating, into a steamer lying at the wharf above. There was some testimony to show that a promise was made by the steamer's master to Ill,ove hil\vessel wpen she floated. Held, as the master of the schooner knew that no watch'had been set on the steamer; and had set no watch onbis own vessel, or made any precautions to avoid a collision, but trusted entirely to some one waking up on the steamer at the proper time to get her. out of the way, he was negligent, andblsnegligence' was not excused by the indeflnite promise of the steamer's lllaBter., Vantin'e v. The Lake, 2 Wall. Jr. 52. ' ,

In Admiralty. , Libelin p61'Sonam by Joseph H. Humphreys, master and part owner oftheateamer Fannie H., against the Cbarles Warner Co., owners of the schooner Sandsnipe, for dam/l.ges for collision, Bradjorct<!c Vandegrift,forlibelant. BmJ. Nield8, for reEiPondents.

WALESi J. The libelant is the master and part owner of the small steam-boat Fannie H., which, on the 10th, of AugUst, 1888, was moored along-side of the city' :wharf On the Christiana river, a short distance west of the foot of Church-street, with herbQw pointing down the river. She was employed during the summer in carrying fruit and, vegetables from the vicinity of Salein.,N.J., to ,Wilmington, and had come in on .the morningofthe day na;med ,between 11 o'clock A. M. and 12)1. Late in the afternoon of the same day, .while was remaining in the position just described"tbe defendant's schOQner, .sundsnipe, loaded with 85 tons of sand, :was towed up the river by a tug, with the purpose of making fast at a wharf below the Fannie H. ,but, the tide being ebb, the schooner ran aground within a few: feet of the flteam-boat. The tug, Mteran unsu.ccessfuL effort to pull the schooner into deeper water, cast loose and \vent. off. Both. the and the s('hooner were now aground; the latter lyingwith her bow somewhat up the river, and at ,aniacuteang].!.'l.with the sttlrhoardsideof the former,! The schooner's out towards the channel. A bowline wasllunffr:om the schooner across the bow of the Fannie H., alld made fast.to,apost onthewhnrf below. The vessels were not more than 40 feet apart, and, from their relative positions, it was inevitable that when the schooner should float, on the next flood-tide, she would swing around, and run into the boat, unless some precautions were taken to prevent the collision. The libel alleges that the necessary precautions were not taken by those in charge of the schooner, whose duty it was to make them, and that the collision, whkh occurred on the rising of the tide, was in consequence of their neglect; and hence this suit by the libelant and other owners for the injury sustained by their boat J and for the loss of freight while she was undergoing repairs.